Class Certification Granted in False Advertising Suit Against KIND

Judge William H. Pauley II of the New York Southern District Court approved the plaintiffs’ motion for class certification in a consolidated lawsuit accusing KIND LLC of false advertising claims and breaching consumer protection laws when it claims that its products are “healthy and all natural.”  In its Order, the court certified three separate classes for New York, California, and Florida. 

The filing explained that the KIND bar produced by the defendant “has become a staple of American checkout counters.” Although the bar claims on its packaging that it is “all natural” and “non-GMO” the plaintiffs allege that the products do not fit the labels but that they are used just to “capitalize on the highly profitable and fast-growing health food market.” The KIND bars purportedly include ingredients which are processed and chemically-synthesized. In filing the lawsuit, the plaintiffs asked the court to stop KIND from continuing these practices and award damages. 

The present lawsuit began at least in 2015, and was transferred to the New York Southern District in August of 2015. The allegations in the lawsuit apply to the labels of 39 separate products produced by KIND. The plaintiffs reported that the company removed its advertisement for “All Natural” products between 2014 and 2017 and altered its “non-GMO statement to “no genetically engineered ingredients.” According to the classes, ingredients in the bars contain synthetic and GMO ingredients, including soy lecithin, soy protein isolate, citrus pectin, glucose syrup, canola oil, and others. 

Judge Pauly decided that although there was a variation throughout the class period in KIND labels, the plaintiffs alleged that all of the labeling was deceptive so each of the proposed class members would have encountered a product with the purported deceptive advertising. 

The order addressed the defendant’s claim that members of the proposed class should need to have proof of purchase to be included in the class, noting that the court previously determined the “lack of a receipt requirement is not fatal to a class action.” Judge Pauley explained that requiring a receipt would significantly restrict consumer class action lawsuits because most consumers do not keep receipts. 

In its opinion and order, the court also approved class representatives for the three classes, New York, California, and Florida, and appointed law firms to represent the classes.  These law firms include Pearson, Simon & Warshaw LLP, Finkelstein, Blankinship, Frei-Pearson & Garber LLP, and Ahdoot & Wolfson PC. The plaintiff’s motion to certify a separate Rule 23(b)(3) injunctive classes was denied. 

Additionally, Pauley denied three motions from KIND to exclude certain testimony and reports in the same order. KIND is represented by Mayer Brown